EPA Designates PFOA, PFOS as Hazardous Substances Under the Superfund Law

The US Environmental Protection Agency (EPA) has issued the final rule that will designate perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as Superfund.

This action will address PFOA and PFOS contamination by enabling investigation and cleanup of the chemicals and ensuring that leaks, spills, and other releases are reported, said the Agency.

In addition to the final rule, EPA is issuing a separate CERCLA enforcement discretion policy that makes clear that EPA will focus enforcement on parties who significantly contributed to the release of PFAS chemicals into the environment, including parties that have manufactured PFAS or used PFAS in the manufacturing process, federal facilities, and other industrial parties.

This action builds on recently finalized standards to protect people and communities from PFAS contamination in drinking water, and represents the latest step the Biden-Harris Administration is taking to protect public health and welfare and the environment under EPA’s PFAS Strategic Roadmap and to prevent cancer before it starts through the Biden Cancer Moonshot, said EPA.

“President Biden understands the threat that “forever chemicals” pose to the health of families across the country. That’s why EPA launched its PFAS Strategic Roadmap, a whole-of-agency approach to protecting public health and addressing the harm to communities overburdened by PFAS pollution,” said EPA Administrator Michael S. Regan. “Designating these chemicals under our Superfund authority will allow EPA to address more contaminated sites, take earlier action, and expedite cleanups, all while ensuring polluters pay for the costs to clean up pollution threatening the health of communities.”

EPA said it is taking this step to designate PFOA and PFOS under CERCLA because both chemicals meet the statutory criteria for designation as hazardous substances. Under the rule, entities are required to immediately report releases of PFOA and PFOS that meet or exceed the reportable quantity of one pound within a 24-hour period to the National Response Center, State, Tribal, and local emergency responders. The designation of PFOA and PFOS as hazardous substances under CERCLA enables the agency to use one of its strongest enforcement tools to compel polluters to pay for or conduct investigations and cleanup, rather than taxpayers. Designation is especially important as delay in addressing contamination allows PFOA and PFOS more time to migrate in water and soil, worsening existing contamination.

The final rule also means that federal entities that transfer or sell their property must provide notice about the storage, release, or disposal of PFOA or PFOS on the property and guarantee that contamination has been cleaned up or, if needed, that additional cleanup will occur in the future. It will also lead the Department of Transportation to list and regulate these substances as hazardous materials under the Hazardous Materials Transportation Act.

According to EPA, this final action is based on significant scientific evidence that these substances, when released into the environment, may present a substantial danger to public health or welfare or the environment. PFOA and PFOS can accumulate and persist in the human body for long periods of time, and evidence from scientific studies demonstrate that exposure to PFOA and PFOS is linked to adverse health effects.

The Superfund program addresses more than 800 hazardous substances. The program also promotes safer industrial practices that enhance community protections by reducing the likelihood of future releases, said EPA. Additionally, cleanups allow communities to put land back into productive use, providing opportunities for jobs and economic growth.

In addition, EPA’s enforcement policy, consistent with EPA’s past practice over decades of implementing the law, will provide additional clarity on the agency’s intent not to pursue certain parties such as farmers, municipal landfills, water utilities, municipal airports, and local fire departments, where equitable factors do not support seeking CERCLA cleanup or costs. EPA has a proven track record of developing and applying enforcement discretion policies that are effective and well-received by stakeholders, ensuring entities that have contributed significant contamination are held accountable.

EPA will publish the Final Rule in the Federal Register shortly. The rule will be effective 60 days after the rule is published in the Federal Register.